Probative or Prejudicial: Evidence of Previous Drug Convictions Admitted to Show Proof of Intent in Drug Case
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
We have written recently about the dangers of the use of extraneous offense evidence at the state trial level; specifically, that the Texas Court of Criminal Appeals has virtually eliminated the availability of any defense in sexual assault cases, particularly those involving a child, when the State has in its possession extraneous offense evidence and the defendant wished to avoid its admission in court. The Fifth Circuit Court of Appeals recently confronted and outlined the parameters of extraneous offense evidence at the federal trial level.
The case involved John Matthew Cockrell who was convicted of conspiracy to possess and intent to distribute heroin resulting in bodily injury in violation of Title 21, Section 846, of the Federal Criminal Code. The Cockrell case began in 2006 when the Plano Police Department informed the FBI’s High Drug Trafficking Area about several heroin drug overdoses in Collin County, some of which were fatal. The FBI soon determined that Cockrell was the local heroin dealer behind the drug overdoses.
The federal investigation produced two co-conspirators who agreed to cooperate with the government. They testified at Cockrell’s conspiracy trial, telling the jury they bought drugs from Cockrell during a two-year span between 2005 and 2007. One of the co-conspirators told the jury that she initially bought methamphetamines from Cockrell but later switched to heroin with two or three buys a week. Prosecutors also presented the following evidence:
- Witnesses testified they saw balloon-packaged heroin inside Cockrell’s apartment, car, and that he distributed the heroin to other dealers as well as customers.
- Other witnesses testified they joined with Cockrell in purchasing large quantities of heroin both for their own personal use and distribution as well.
- Two witnesses testified they overdosed on heroin supplied by Cockrell and required emergency room treatment. Their testimony was corroborated by treating paramedics and ambulance records. 1
You would naturally assume that was sufficient evidence presented by the prosecution upon which the jury could make a reasonable finding of guilt, but that was not the case. The Government had essentially knitted its conspiracy case together with testimony from Cockrell’s co-conspirators which had been procured with lenient plea deals. This prompted the Government to feel a need to bolster its shaky case with extraneous offense evidence. Rule 404(b) of the Federal Rules of Evidence governs the admissibility of extraneous offense evidence. This Federal extraneous offense evidence rule tracks with the Texas extraneous offense evidence rule. Both rules permit the use of this kind of evidence to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
The Fifth Circuit has adopted a two-prong test for determining the proper admission of Rule 404(b) evidence. 2/ First, the extraneous offense evidence must be relevant to some issue at trial other than the defendant’s character. The trial court must make this preliminary relevance determination by deciding if the extraneous offense evidence is similar to the offense for which the defendant is being tried. 3/
Second, the probative value of the extraneous offense evidence must not be outweighed by its undue prejudice. This prong of the analysis requires the trial court to make a “commonsense assessment of all the circumstances surrounding the extrinsic offense.” 4/
The court may consider “the overall similarity of the extrinsic and charged offenses, and the amount of time that separates the extrinsic and charged offenses.” 5/ The Fifth Circuit, however, has held this prong would require exclusion “only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” 6/
The Government in Cockrell’s case introduced evidence of a prior heroin conviction in which a telephone was used to facilitate the sale of the drug. The Government successfully argued the prior conviction showed Cockrell’s intent to distribute drugs. The trial court admitted the prior conviction on the legal theory that “the mere entry of a not guilty plea in a conspiracy case raises the issue of intent sufficiently to justify the admissibility of extrinsic offense evidence.” 7/
The court added that since the two offenses were similar and that much of evidence against Cockrell relative to his drug dealing activities would be provided by indicted and un-indicted co-conspirators, there was a need for the Government to present other evidence from which intent to commit the charged offense could be inferred. 8/
The second piece of extraneous offense evidence the Government introduced against Cockrell was an arrest for having 1.4 grams of methamphetamine in his car. This arrest occurred at the Farmer’s Branch, Texas, Police Department after police officers observed Cockrell talking on a telephone in what appeared to them to be a drug deal. One of the officers overheard over a speaker-phone the person to whom Cockrell was speaking ask if Cockrell “would be able to pick up a quarter of brown,” a term the officer knew to be heroin. The officers ran a NCIC check on Cockrell and determined he had several outstanding warrants pending. They arrested him, and during the search of his vehicle, they discovered the 1.4 grams of methamphetamine. Both officers later testified at Cockrell’s trial that the amount was consistent with either personal use or distribution. 9/
The trial court admitted the prior meth arrest for two reasons: first, the fact that Cockrell’s telephone call appeared to be a heroin deal and was similar to the offense for which he was being tried; and, second, even if the meth arrest was not similar to the offense charged, the meth possession was relevant to Cockrell’s intent to distribute heroin under the conspiracy charge for which he was being tried. 10/
The Fifth Circuit upheld the trial court’s decision to allow this extraneous offense evidence primarily because it demonstrated Cockrell’s propensity to sell drugs. The general prohibition against the use of extraneous offense evidence to show a defendant’s “bad character” was, at it turned out, the very reason why the Government chose to use the evidence. All the legal posturing and jockeying notwithstanding by the appeals court, the extrinsic evidence of Cockrell’s prior drug conviction and drug possession arrest were used by the Government precisely to show his bad character as a drug dealer. The Government knew the prior drug-related offenses bolstered its case against Cockrell. This charge is given credence by the Fifth Circuit’s own conclusion that “most of the witnesses [against Cockrell] were indicted and unindicted co-conspirators, many of whom received immunity or plea agreements, a fact that the defense used to repeatedly attack credibility. Given Cockrell’s choice to defend in this matter, it was not an abuse of discretion to admit testimony regarding the events at the Farmer’s Branch police station for the purposes of showing intent and to support any inference of intent that might be drawn from other testimony.” 11/
The key phrase in the Fifth Circuit’s conclusion is “Cockrell’s choice to defend in this matter.” In other words, Cockrell’s decision to plead not guilty, standing alone, was a sufficient basis for allowing the jury to hear the highly prejudicial extraneous offense evidence. Given the Government’s arguably weak case, based mostly upon testimony of co-conspirators with plea deals, prosecutors chose to resort to under-handed tactics to poison the jury with the perception of Cockrell being a career drug dealer.
It worked. The jury found Cockrell guilty and the court sentenced to a term of imprisonment of 380 months to be followed by five years of probation. While the Government may have successfully removed a career drug dealer from the streets, it did so at a tremendous cost to our adversarial system of justice. Cockrell’s attorneys were not only forced to defend against the offense for which their client had been indicted but also defend against prior “bad acts” for which Cockrell had already been punished.
The question that hangs in the air like some foul odor is: would the jury have convicted Cockrell based solely on the testimony of the co-conspirators who cut deals to save their own behinds?
1/ United States v. Cockrell, 2009 U.S. App. LEXIS 24474 (5th Cir. Nov. 6, 2009)
2/ United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)
3/ Beechum, supra, at 911
4/ Beechum, supra, at 914
5/ United States v. Richards, 204 F.3d 177, 191-201 (5th Cir. 2000)
6/ Beechum, supra, at 920
7/ United States v. Parziale, 947 F.2d 123, 129 (5th Cir. 1991)
8/ Cockrell, supra, at Lexis 3
9/ Cockrell, supra, at Lexis 4-5
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair